B-168859, MAY 26, 1970

B-168859: May 26, 1970

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LOW BIDDER WHOSE BID WAS REJECTED BECAUSE LITERATURE WAS INADEQUATE. WHO CONTENDS DETAILED LITERATURE REQUESTED WAS NOT NECESSARY. OFFERS NO BASIS FOR OBJECTION SINCE THERE WAS SUFFICIENT JUSTIFICATION FOR DESCRIPTIVE CLAUSE. ARTICLES WERE COMPLEX AND WERE FOR ERECTION IN REMOTE AREAS OF SOUTH AMERICA IN 60 HOURS WITHOUT CRANE. LITERATURE'S FAILURE TO INDICATE FULL COMPLIANCE WITH SPECIFICATIONS IS NOT OVERCOME BY BIDDER'S BLANKET OFFER TO COMPLY WITH SPECIFICATION REQUIREMENTS. DESCRIPTIVE LITERATURE AS SPECIFIED IN THE INVITATION WAS REQUIRED TO BE FURNISHED AS PART OF THE BID. FOUR BIDS WERE RECEIVED AND WERE OPENED DECEMBER 29. YOUR BID WAS THE LOWEST OF THOSE RECEIVED. YOUR BID WAS REJECTED ON THE GROUNDS THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH IT WAS INADEQUATE.

B-168859, MAY 26, 1970

CONTRACTS--SPECIFICATIONS--DESCRIPTIVE DATA--JUSTIFICATION INVITATION FOR BIDS FOR SEMITRANSPORTABLE ANTENNA SYSTEMS REQUIRED FURNISHING DESCRIPTIVE LITERATURE AS PART OF BID. LOW BIDDER WHOSE BID WAS REJECTED BECAUSE LITERATURE WAS INADEQUATE, MAKING BID'S TECHNICAL EVALUATION IMPOSSIBLE, AND WHO CONTENDS DETAILED LITERATURE REQUESTED WAS NOT NECESSARY, OFFERS NO BASIS FOR OBJECTION SINCE THERE WAS SUFFICIENT JUSTIFICATION FOR DESCRIPTIVE CLAUSE. ARTICLES WERE COMPLEX AND WERE FOR ERECTION IN REMOTE AREAS OF SOUTH AMERICA IN 60 HOURS WITHOUT CRANE; MOREOVER, LITERATURE'S FAILURE TO INDICATE FULL COMPLIANCE WITH SPECIFICATIONS IS NOT OVERCOME BY BIDDER'S BLANKET OFFER TO COMPLY WITH SPECIFICATION REQUIREMENTS. SEE COMP. GEN. DECS. CITED.

TO HY-GAIN ELECTRONICS CORPORATION:

WE AGAIN REFER TO YOUR TELEFAX OF JANUARY 22, 1970, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. P-2064 ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), WALLOPS ISLAND, VIRGINIA.

THE REFERENCED INVITATION DATED DECEMBER 15, 1969, SOLICITED BIDS FOR THREE PALLETIZED, SEMITRANSPORTABLE ANTENNA SYSTEMS. DESCRIPTIVE LITERATURE AS SPECIFIED IN THE INVITATION WAS REQUIRED TO BE FURNISHED AS PART OF THE BID.

FOUR BIDS WERE RECEIVED AND WERE OPENED DECEMBER 29, 1969, AND YOUR BID WAS THE LOWEST OF THOSE RECEIVED. HOWEVER, YOUR BID WAS REJECTED ON THE GROUNDS THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH IT WAS INADEQUATE, THUS MAKING TECHNICAL EVALUATION OF YOUR PROPOSAL IMPOSSIBLE. AWARD WAS MADE TO THE SECOND LOWEST BIDDER, TRYLON, INCORPORATED, ON JANUARY 20, 1970.

IT IS ADMINSTRATIVELY REPORTED THAT IFB NO. P-2064 INVOLVED THE PROCUREMENT OF ANTENNA SYSTEMS TO BE USED IN CONNECTION WITH A JOINT PROJECT TO BE CONDUCTED BY NASA AND THE FEDERAL REPUBLIC OF GERMANY TO RELEASE A BARIUM ION CLOUD IN SPACE FOR THE STUDY OF ITS SHAPE AND MOTION. PART OF THE PROJECT WILL INVOLVE THE OBSERVATION OF THE CLOUD RELEASE FROM TWO SITES IN SOUTH AMERICA. THE ANTENNAS BEING PROCURED WERE TO BE PART OF HIGH FREQUENCY RADIO CIRCUITS TO PROVIDE COMMUNICATIONS BETWEEN THE SOUTH AMERICAN OBSERVATION SITES AND THE NASA WALLOPS ISLAND, VIRGINIA, RADAR STATION.

IT IS FURTHER REPORTED THAT THE REQUIREMENTS THAT THE ANTENNAS BE SEMITRANSPORTABLE AND CAPABLE OF BEING ERECTED IN 60 MAN-HOURS WITHOUT THE AID OF A CRANE HAD A VERY IMPORTANT BEARING ON THE TIME SCHEDULE OF THE PROJECT AND THE FACT THAT THE ANTENNAS WERE TO BE ERECTED IN REMOTE AREAS OF SOUTH AMERICA.

THE REQUIREMENT FOR DESCRIPTIVE LITERATURE INCLUDED IN THE INVITATION READS, IN PERTINENT PART, AS FOLLOWS:

"(A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE, AS REQUIRED, SHALL BE FURNISHED STEP BY STEP IN ACCORDANCE WITH THE SPECIFICATIONS FOR THE PURPOSE OF BID EVALUATION AND AWARD AND SHALL SHOW DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO ERECTION OF ANTENNA SYSTEM; DESIGN AND PERFORMANCE OF LOG-PERIODIC ANTENNA, DIS CONE, ROTATOR AND CONTROL SYSTEM; AND OVERALL DESIGN OF ANTENNA SYSTEM.

"(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. * * *"

YOUR BID WAS ON YOUR MODEL HV-4011 AND WITH IT YOU SUBMITTED DESCRIPTIVE LITERATURE WHICH WAS PREFACED WITH THE FOLLOWING STATEMENT:

"THE ATTACHED BRIEFLY DESCRIBES THE HY-GAIN MODEL HV-4011 ANTENNA SYSTEM. SHOULD AN AWARD UNDER IFB P-2064 BE MADE TO HY-GAIN ELECTRONICS, THE ANTENNAS SUPPLIED WOULD BE BUILT ACCORDING TO SPECIFICATION NO. P2064 AND WOULD MEET ALL REQUIREMENTS OF IT. SPECIFICATION P2064 WILL BE THE GOVERNING DOCUMENT AND NOT THE ATTACHED. ALSO ATTACHED IS A COPY OF HY- GAIN'S LATEST CATALOG, OUTLINING OUR MAJOR ANTENNA SYSTEMS AND DEMONSTRATING, AS DESCRIPTIVE LITERATURE, OUR ENGINEERING AND PRODUCTION CAPABILITY TO PERFORM ALL REQUIREMENTS OF IFB P-2064." HOWEVER, YOUR LITERATURE CONTAINED NO DETAILS AS TO THE ERECTION OF THE ANTENNA SYSTEM AND AS TO THE OVERALL DESIGN OF THE SYSTEM.

IT IS YOUR CONTENTION THAT THE DETAILED DESCRIPTIVE LITERATURE REQUESTED IN THE IFB WAS NOT NECESSARY AND IN SUPPORT OF YOUR ARGUMENT YOU CITE OUR DECISION 49 COMP. GEN. --- (B-167936 (1), DECEMBER 19, 1969). IN THAT DECISION, WE DISCUSSED UNDER WHAT CIRCUMSTANCES A DESCRIPTIVE LITERATURE REQUIREMENT MAY BE JUSTIFIED AND, IF IT IS JUSTIFIED, THE NATURE AND EXTENT OF THE DESCRIPTIVE MATERIAL WHICH SHOULD BE REQUESTED AND THE PURPOSE TO BE SERVED BY SUCH DATA. WE CONCLUDED THAT FROM THE RECORD PRESENTED TO US IN THAT CASE THERE WAS NO JUSTIFICATION FOR THE INCLUSION OF THE DESCRIPTIVE LITERATURE REQUIREMENT AND, IN SUPPORT OF THAT CONCLUSION, WE CITED 46 COMP. GEN. 315 (1966) WHEREIN WE STATED THAT WHEN A DESCRIPTIVE LITERATURE REQUIREMENT MAY BE MET BY "PARROTING BACK" THE GOVERNMENT SPECIFICATIONS, THE JUSTIFICATION FOR SUCH A REQUIREMENT IS QUESTIONABLE.

A LONG LINE OF DECISIONS RECOGNIZES THE AUTHORITY OF ADMINISTRATIVE AGENCIES TO CONDITION THE CONSIDERATION AND EVALUATION OF BIDS IN THE PROCUREMENT OF SPECIALIZED EQUIPMENT UPON THE SUBMISSION BY BIDDERS OF SPECIFIC DESCRIPTIVE DATA WITH THEIR BIDS TO ENABLE PROCUREMENT OFFICIALS TO CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE AGENCY WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD. COMP. GEN. 737 (1963); 41 ID. 192 (1961); 40 ID. 132 (1960); 37 ID. 763 (1958); 36 ID. 415 (1956).

INCLUSION OF DESCRIPTIVE LITERATURE REQUIREMENTS IN INVITATIONS FOR BIDS IS ALSO DEALT WITH IN NASA PROCUREMENT REGULATION 2.205-5. THAT SECTION PROVIDES THAT BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS PART OF THEIR BIDS UNLESS THE PROCUREMENT OFFICE DEEMS THAT SUCH LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENTS OF THE IFB AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. THE REGULATION ALSO STATES THAT WHEN DESCRIPTIVE LITERATURE IS REQUIRED, THE INVITATION SHALL CLEARLY STATE WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE EVALUATION OF BIDS AND THE RULES WHICH WILL APPLY IF A BIDDER FAILS TO FURNISH IT BEFORE BID OPENING.

FROM THE RECORD FURNISHED OUR OFFICE, WE MUST CONCLUDE THAT THERE WAS SUFFICIENT JUSTIFICATION FOR THE INCLUSION OF THE DESCRIPTIVE LITERATURE CLAUSE IN THE INVITATION. ALTHOUGH THE SPECIFICATIONS OF THE EQUIPMENT TO BE PROCURED APPEAR TO BE STATED IN DETAIL AS TO THE DESIGN AND PERFORMANCE OF THE LOG-PERIODIC ANTENNA, DIS CONE, ROTATOR AND CONTROL SYSTEMS, DESCRIPTIVE LITERATURE WAS ESSENTIAL AS TO THE OVERALL ERECTION AND DESIGN CHARACTERISTICS OF THE ANTENNA SYSTEM AND THOSE REQUIREMENTS COULD NOT BE MET BY "PARROTING BACK" GOVERNMENT SPECIFICATIONS.

THROUGHOUT THE SPECIFICATIONS CONSIDERABLE EMPHASIS WAS PLACED UPON THE REQUIREMENT THAT THE ANTENNA SYSTEM BE SEMITRANSPORTABLE AND CAPABLE OF BEING ERECTED WITHIN A RELATIVELY SHORT TIME WITHOUT THE AID OF A CRANE. FURTHER, THE RECORD INDICATES THAT THE ARTICLES CALLED FOR BY THE SPECIFICATIONS WERE OF A COMPLEX NATURE AND WERE TO BE ERECTED IN A REMOTE AREA OF SOUTH AMERICA IN NO MORE THAN 60 HOURS WITHOUT THE USE OF A CRANE. BECAUSE OF THESE SPECIFIC REQUIREMENTS, IT WAS NECESSARY TO HAVE THE BIDDER SUBMIT DESCRIPTIVE LITERATURE TO ENABLE PROCUREMENT OFFICIALS TO ASCERTAIN WHETHER THE ITEMS OFFERED BY THE BIDDERS WOULD MEET THESE CRITICAL REQUIREMENTS. WE BELIEVE THAT THE DESCRIPTIVE LITERATURE REQUIREMENT OF THE PRESENT INVITATION CLEARLY ESTABLISHED THE NATURE AND EXTENT OF THE DATA REQUIRED, THE PURPOSE INTENDED TO BE SERVED BY SUCH DATA, AND THAT SUCH DATA WAS TO CONSTITUTE A PART OF THE BID. THEREFORE, WE MUST CONCLUDE THAT THERE WAS JUSTIFICATION FOR THE INCLUSION OF A DESCRIPTIVE LITERATURE REQUIREMENT IN THE SUBJECT INVITATION. 46 COMP. GEN. 315, 318 (1966); 38 ID. 59 (1958).

IN THE DESCRIPTIVE LITERATURE THAT ACCOMPANIED YOUR BID, YOU STATED THAT SHOULD AWARD BE MADE TO HY-GAIN "THE ANTENNAS SUPPLIED WOULD BE BUILT ACCORDING TO SPECIFICATION NO. P2064 AND WOULD MEET ALL REQUIREMENTS OF IT." OUR OFFICE HAS HELD THAT A BIDDER'S FAILURE TO FURNISH COMPLETE DESCRIPTIVE LITERATURE OR FAILURE OF HIS DESCRIPTIVE LITERATURE TO INDICATE FULL COMPLIANCE WITH THE SPECIFICATIONS IS NOT OVERCOME BY THE BIDDER'S BLANKET OFFER TO COMPLY WITH THE SPECIFICATION REQUIREMENTS. COMP. GEN. 192, 195 (1961); 40 ID. 132 (1960); 36 ID. 415 (1956).

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID WAS PROPER.